In Montgomery County, where nearly half of those aged 70 and older report having some kind of disability, the number of guardianship cases is increasing. Guardianship filings with the Montgomery County Circuit Court have doubled since 2008, reaching 300 in fiscal year 2013. In response, the Montgomery County Circuit Court, Family Division Services, has begun a new program to help guardians carry out their role.
Judge Cynthia Callahan, who heads the Court’s Family Division, said, “Many people aren’t aware of services for disabled persons or the assistance the court can give guardians in filling out forms and required annual reports. We are trying to put a process in place to identify those who might need some help and to make the documentation and available services less mysterious.”
Guardianship is a legal procedure in which a court determines that a person is in need of protection because a disability, hospitalization or other impairment makes the person incapable of making personal decisions. The court appoints an individual or agency to make decisions about the person’s daily life, such as medical care or housing. Depending on the circumstances and the relationship, the guardian may provide needed services directly or may hire others to do so.
“As this is a pilot program, we are looking to gather data on what works and what doesn’t work. Since 60 percent of the court docket concerns family related issues and services, we think the project is a worthwhile undertaking and the right thing for us to be doing,” Callahan said.
Three guardianship assistants have been selected from an applicant pool of social work graduate students. Each will meet with a guardian, the person under guardianship and any other people involved in the person’s daily activities. The assistant will help guardians address issues that might be interfering with their ability to fulfill their responsibilities and will identify services and other resources to help resolve the issues.
“Being a guardian of a person can be very demanding, and most people who are appointed guardian have never played that role before. A guardian may not fully understand what they are required to do and also may not be aware of the range of public and private resources that can provide assistance,” said Deborah Zuckerman, who coordinates the new program.
Guardians’ roles vary from case to case, but they typically have to determine where a person will live, provide for the individual’s care and welfare, make medical treatment decisions and advocate for effective services.
“The assistants will make sure guardians know and understand their duties, help locate home health agencies if needed and also help guardians locate respite programs so they can get a break. They will also help identify housing options and where guardians can apply for any needed financial assistance,” said Zuckerman.
“Guardianship is a double-edged sword. It is a positive, protective device that can help to keep people with diminished capacity from harm and help them retain as much independence as possible. Yet, by its very nature, guardianship removes fundamental rights. Because of this, and because it is time-consuming, expensive and stigmatizing, guardianship should only be sought as a last resort, after all less restrictive alternatives have been eliminated,” said Zuckerman.
Becoming a guardian requires a formal petition to the Circuit Court. The court will grant the petition if it finds by “clear and convincing evidence” that the person does not have sufficient understanding or capacity to make personal decisions.
A person may need a guardian when:
a person can no longer manage personal or financial affairs because of diminished capability; and
a voluntary arrangement for decision making has not been made (such as a durable financial power of attorney or an advance health care directive); and
serious harm will come to the individual if a legally-authorized decision maker is not appointed.
Guardianship also may be necessary when:
someone with power of attorney or other legal authority has misused that authority or another party challenges the validity of the arrangement or a particular action; or
family members or other trusted individuals are in dispute and cannot agree on a course of action.
For information on guardianship and the new program, call the Circuit Court’s Family Division Services, (240) 777-9060, or, for senior services, Montgomery County’s senior resource line at 240-777-3000.
